The Blog of International Judicial Assistance | By Ted Folkman of Pierce Bainbridge

Posts tagged “protective order”

The case of the day is ACL Netherlands BV v. Lynch, [2019] EWHC 249. A US grand jury issued a subpoena to Hewlett Packard Enterprises. The subpoena called for HP to produce documents in the possession of direct or indirect subsidiaries in the UK. But those subsidiaries had received the responsive documents in the course of UK litigation, and they were subject to what we would call a protective order allowing them to use the documents only for purposes of the UK litigation, without leave of court. (Unlike in US practice, where protective orders are ad hoc, in English practice there are rules imposing limitations on disclosure that apply more generally). The subsidiaries sought permission from the High Court to produce the documents.

The case of the day is Autodesk, Inc. v. ZWCAD Software Co. (N.D. Cal. 2015). The claim was for copyright infringement and trade secret misappropriation; Autodesk claimed that ZWCAD, a Chinese firm, had committed a “wholesale theft of its proprietary source code.” There was a protective order in the case, but ZWCAD claimed that it would risk legal consequences in China if it produced confidential material in discovery, so it asked the court to require that such materials be requested and produced via the Hague Evidence Convention, or at least to amend the protective order to require the inspection of source code to take place in China.

The case of the day, Strauss v. Credit Lyonnais, S.A. (E.D.N.Y. 2011), raises issues we have not previously considered. The plaintiffs were American victims of terrorist attacks carried out in Jerusalem by Hamas, and members of their family. They sued Credit Lyonnais under the Anti-Terrorism Act of 1992, alleging that the bank had provided material support to Hamas. Today’s opinion involved the confidentiality of documents produced in discovery. The bank had previously produced documents containing financial information about one of its customers, the Comité de Bienfaisance et de Secours aux Palestiniens, which the US government designated as a “Specially Designated Global Terrorist” in 2003, and had designated the documents as “confidential” or “highly confidential”. In addition to bank account records, the documents included declarations…